Trump’s executive order on free speech is remarkably thin — but a signal to the right

President Trump greets Justine Murray, a student at Syracuse University, after signing an executive order to protect free speech on college campuses. (Saul Loeb/AFP/Getty Images)

By Caroline Mala Corbin

Caroline Mala Corbin is a professor of law at the University of Miami School of Law.

March 25

Surrounded by conservative student activists who claim to have been stifled by liberal thought police, President Trump on Thursday signed an executive order addressing free speech on college campuses. Its ostensible aim is to “encourage institutions to foster environments that promote open, intellectually engaging, and diverse debate.” Yet the order neither advances that goal nor appears to be intended to so.

For all of the drama surrounding the announcement — the president said he was taking “historic action” to protect “American students and American values that have been under siege” — the content of the order is awfully thin. It creates no new protections for campus speech and mostly just restates universities’ current obligations under “all applicable Federal laws, regulations, and policies.”

That doesn’t mean that the administration can’t apply federal pressure to campuses, possibly in politically selective ways. But the gap between the vast claims about the order’s importance and its negligible content may be a plus for the administration, given that the campuses potentially most affected by any new “free speech” rules would not be the liberal colleges and universities featured in so many complaints in the conservative media. They would be private Christian institutions, which routinely censor and punish speakers whose views clash with their own.

The order mandates that public colleges and universities comply with applicable federal rules and the First Amendment — or risk losing federal research grants. The latter is a new cudgel, but as state entities, public universities are already subject to the free-speech clause of the First Amendment, which prohibits targeting unpopular viewpoints for punishment or unequal treatment. Even more ineffectually, the order also insists that private colleges and universities comply with applicable federal rules and their “stated institutional policies,” without dictating the content of those policies or even standards that must be met.

In other words, the order tells state institutions to obey the Constitution, which they already must do, and tells private institutions to adhere to whatever rules they’ve already published. Regardless of whether you think there’s a free-speech problem on college campus, rules like that aren’t going to do much.

The way the order was unveiled makes clear that this administration’s focus is on the free-speech rights of only some citizens — namely, conservatives. First, the president previewed the order at a speech at the Conservative Political Action Conference (CPAC). Second, there was that signing ceremony: The students who spoke of conflicts with campus administrators were all conservative. And looking on approvingly were conservative activists such as Charlie Kirk of Turning Point USA, who has complained about the left’s “stranglehold” on campuses as well as “the hostility, vitriol and violence” directed toward conservative students.

Third, in signing the order, Trump took care to echo the language of conservative laments about campuses. He proclaimed: “Under the guise of speech codes, and safe spaces, and trigger warnings, these universities have tried to restrict free thought, impose total conformity and shut down the voices of great young Americans.” Clearly, the message being conveyed here had less to do with preserving the robustness of debate on campuses than about protecting certain voices in that debate. It is telling that the Foundation for Individual Rights in Education (FIRE), a vehement defender of free speech on campuses, did not immediately praise the order but took a wait-and see position.

If the goal is to protect conservatives, the wisest course might be to stay out of the affairs of private schools. That’s because all the attention given to the purported censorship of conservatives — and some studies of the subject have suggested that the crisis has been exaggerated — has led people to overlook the overt and unembarrassed censorship of the left at private religious universities and colleges. Religious schools routinely discriminate against speakers on campus based on their viewpoints. In the New Republic, journalist Sarah Jones has described, for instance, how Liberty University banned from campus a Christian pacifist who supported gun control — and then forbade the student newspaper to cover the story.

Jones also recounted how the newspaper at her private Baptist alma mater, Cedarville University in Ohio, shut itself down to protest excessive censorship by administrators. Even Georgetown University, a generally tolerant institution that promises, in its policy on speech and expression, “untrammeled expression of ideas and information,” has refused to officially recognize a student group supportive of abortion rights. The irony is that if the administration were to take seriously its promise to guarantee truly free inquiry and debate on campuses, places populated by its supporters would immediately come under scrutiny.

Of course, no one expects the administration to enforce the executive order against conservative-leaning schools. On the contrary, when and if enforcement comes, it most probably will target those colleges and universities that are seen as hampering conservative speech. For, while the order imposes no new requirements on institutions, there remains the risk that the government will enforce existing requirements unequally. That is, the government might investigate or even sanction schools where the alt-right loses its platform but not those where LGBTQ advocates do.

Even without discriminatory enforcement, there is a risk that the executive order will chill speech. Chill occurs when governmental acts end up restricting speech not by direct government censorship but by self-censorship. The order doesn’t specify what amounts to a violation of the vague free-speech guidelines it lays out, and who makes the determination that an offense has occurred. When people are not certain whether their speech will be punished, they may decide it is safer to remain silent.

Such self-censorship hurts us all and undermines the three main goals of the free speech clause: It undercuts the autonomy of speakers, who now do not express themselves; it undermines a free exchange of ideas that helps our search for knowledge; and it damages democratic self-governance, especially if the views chilled are those that criticize the government and its policies.

Some academics have described the executive order as a solution in search of a problem. Free-speech clashes do occur on campuses, but existing law offers tools to handle them. But the order may be worse than the empty gesture it first appears to be. It still telegraphs to some Americans that their views are privileged and merit special protection, and to others that their speech may soon be monitored in an unspecified way. Even thin and vague executive orders can be harmful.